The passage from the norm to the decision: the function of argumentation in the legal order

Abstract

The analysis of the passage from norm to decision emphasizes the linguistic dimension of Law: its textuality of law, and within this textuality, the diversity of the normative density of texts. This textuality and its institutionalization imply a requirement of rationality of state acts. It concerns the motivation of decisions: it makes it necessary that their validity be argued. The arguments can find their source in the legal order; these are often insufficient, and the judge must then draw on social knowledge, which he thus integrates into the legal order. He obeys a double programming, which ensures the social acceptance of his decisions. In this way, the argumentation leads to the solution of the legal question to be solved: it is expressed in the particular norm that is the basis of the decision and that will be a particular case of the general norm to be applied. The succession of particular norms referring to the same general norm and forming its encyclopedia is the basis of the continuity of jurisprudence. The addressees of the argumentation are, procedurally, the parties involved before the judge, but also, much more broadly, the doctrine, and even more broadly, the community, fictitiously called the universal audience.